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Post-judgment attacks on jury decision rejected

Where a jury largely found for two police officers on a motorist’s state and federal claims arising out of a traffic stop, the motorist’s post-judgment motions, challenging the verdict, expert testimony, jury instructions and the court’s management of the trial, were rejected.


This case arises from a traffic stop involving Caron Nazario and Joseph Gutierrez and Daniel Crocker, both of whom were at the time police officers employed by the town of Windsor in Isle of Wight, Virginia. During the stop, plaintiff was sprayed, forcibly removed from his vehicle, forced onto the ground and handcuffed. After restraining plaintiff, Crocker conducted a search of plaintiff’s vehicle. Plaintiff was ultimately released and allowed to leave the scene.

Plaintiff filed suit against defendants alleging violations of his state and Constitutional rights. As to Crocker, the jury awarded plaintiff nothing in compensatory damages and $1,000.00 in punitive damages under the Virginia state law illegal search claim and found for Crocker on all remaining counts. As to Gutierrez, the jury found him liable for common law assault and awarded plaintiff $2,685.00 in compensatory damages but found for Gutierrez on all other counts. This matter is now before the court on two post-trial motions filed by plaintiff.

Inconsistent verdict

Plaintiff challenges the jury’s finding that Gutierrez was liable for assault but not liable for battery. The court found that the original detention was lawful. It is therefore conceivable that the jury could have found that the actions taken by Gutierrez and Crocker were reasonably necessary to effectuate the stop after Nazario began resisting, and thus were legally justified.

Furthermore, for plaintiff to have preserved the ability to contest the alleged error, the purported inconsistencies in the jury verdict should have been brought to the court’s attention prior to the dismissal of the jury; failure to do so “will constitute a waiver of a party’s right to seek a new trial.” Here, plaintiff’s counsel neither requested a jury instruction that comports with the reading of the law they offer in their motion (e.g., that finding assault necessitated a finding of battery), nor objected to the jury’s alleged error(s) prior to dismissal of the jury.


Plaintiff argues that defense expert Dr. Sheorn’s testimony was false because: (1) that she falsely told the jury that one of the diagnostic criteria for PTSD was that the trauma had to be “unspeakable and incomprehensible” and (2) that she falsely testified that General Anxiety Disorder was a disorder of dependency that whose diagnostic criteria required it to originate in childhood.

Plaintiff had multiple opportunities to challenge Dr. Sheorn’s testimony — whether through a Daubert motion, pretrial motion to exclude or through effective objection, cross examination or rebuttal testimony from their own expert. Plaintiff did not avail himself of any of these opportunities, and he cannot now lay his failure to do so at the feet of the court.

Jury instruction

Plaintiff argues that a jury instruction regarding reasonable force an officer can use in making an arrest contradicts another instruction regarding the court’s finding of probable cause for obstruction of justice without force and failure to obey. Based on the drafting history and plaintiff’s lack of contemporaneous objections, plaintiff has waived his ability to raise these issues in moving for a new trial.


Plaintiff argues that the clear weight of the evidence shows that he was profoundly injured due to the defendants’ use of excessive force against him. As defendants point out, the jury could have determined that plaintiff’s experts, or plaintiff himself, was not credible. The less-than-ideal outcome for plaintiff is not sufficient justification for a new trial.

Plaintiff further argues that (1) per Virginia Code § 44-97, plaintiff was exempt from arrest except for a breach of the peace or in the case of a felony because he was returning home from required military duty, and the court should have permitted a jury instruction to this effect and (2) a juror was allegedly sleeping during the trial.

Because the proposed jury instruction was not timely proposed and thus not “properly requested,” its exclusion from the final set of jury instructions is insufficient basis for a new trial. And, a single alleged instance of a sleeping juror does not constitute a miscarriage of justice sufficient to warrant a new trial.


Plaintiff asserts that the jury’s $0.00 damages award on the illegal search claim is contrary to federal and state law, as case law requires at least “nominal” damages when a defendant is found liable for a Constitutional violation. The court awards plaintiff nominal damages in the amount of $1.00.

The jury also awarded zero dollars in compensatory damages and $1,000 in punitive damages for the illegal search claim under Virginia Code § 19.2-59. Plaintiff contends that the Virginia statute mandates an award of compensatory and punitive damages. Finding that the Virginia statute is clear in its language and intention, this court awards nominal damages in the amount of $1.00 on the state law claim of illegal search.

Plaintiff’s Rule 50 and 59 motions denied. Plaintiff’s motion to alter or amend granted.

Nazario v. Gutierrez, Case No. 2:21-cv-169, May 3, 2023. EDVA at Norfolk (Young). VLW 023-3-239. 21 pp.

VLW 023-3-239

Virginia Lawyers Weekly